UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES H. WILLIAMS,
Defendant-Appellant.

No. 02-4057

Appeal from the United States District Court

for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-01-332)
Submitted: September 10, 2002
Decided: October 4, 2002
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

COUNSEL
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, John M. Barton, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

UNITED STATES v. WILLIAMS

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION
PER CURIAM:
James H. Williams pled guilty to two counts of making and presenting false claims on Internal Revenue Service Forms 1041 in violation of 18 U.S.C. 247, 2 (2000). On appeal, Williams counsel has
filed a brief challenging: (1) the district courts failure to award an
additional point for acceptance of responsibility; (2) the obstruction
of justice enhancement to the offense level; and (3) the denial of his
motion for a downward departure. Williams has moved for leave to
file a pro se supplemental brief. We grant the motion for leave to file
a pro se supplemental brief. In his pro se supplemental brief, Williams
raises several non-meritorious issues. With respect to the issue of restitution, this Court vacates the judgment and remands to the district
court for the limited purpose that it enter a judgment reflecting the
amount of restitution imposed by the court orally at sentencing. In all
other respects, we find no reversible error.
A district courts decision to deny a reduction to the offense level
for acceptance of responsibility is reviewed for clear error. United
States v. Pauley, 289 F.3d 254, 261 (4th Cir. 2002). At sentencing,
Williams has the burden of showing he was entitled to the additional
one level reduction. United States v. Nale, 101 F.3d 1000, 1005 (4th
Cir. 1996). Because he failed to show his guilty plea was timely or
that he timely provided complete information to authorities, the district courts failure to order an additional one level reduction was not
clearly erroneous. See U.S. Sentencing Guidelines Manual 3E1.1(b)
(2000).
This Court reviews for clear error a district courts decision to
increase the offense level for obstruction of justice. United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002). Under U.S.S.G. 3C1.1, a
two level increase is warranted if the defendant:

UNITED STATES v. WILLIAMS

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant
offense of conviction, and (B) the obstructive conduct
related to (i) the defendants offense of conviction and any
relevant conduct; or (ii) a closely related offense.
We find the district courts factual findings were sufficient to authorize imposition of the increase to the offense level for obstruction of
justice.
This Court does not have jurisdiction to review the district courts
decision not to depart downward because it knew it had the authority
to depart downward. United States v. Bayerle, 898 F.2d 28, 31 (4th
Cir. 1990).
With respect to Williams pro se supplemental brief, the oral sentence as recorded in the transcript with respect to restitution differs
from the restitution in the written judgment. The district court ordered
restitution in the amount of $4100. The judgment indicates restitution
in the amount of $6100. "[T]he sentences to be served . . . are those
pronounced in the defendants presence in open court and not those
set out in the written judgments of the court." Rakes v. United States,
309 F.2d 686, 687 (4th Cir. 1962). The remedy is to vacate the judgment and remand to the district court for the purpose of correcting the
written judgment to conform to the oral sentence. See id. at 688; see
also United States v. Morse, 344 F.2d 27, 31 n.1 (4th Cir. 1965).
Thus, the written judgment in the instant case should reflect the district courts oral pronouncement at sentencing. Because Williams
committed a crime of fraud, restitution is mandatory. See 18 U.S.C.A.
3663A(c)(1)(ii) (West 2000 & Supp. 2002). The remaining issues
raised in Williams pro se supplemental brief are without merit.
Accordingly, we grant Williams motion for leave to file a pro se
supplemental brief and we vacate the courts judgment and remand
for the limited purpose of having the district court re-enter a judgment
conforming to the oral sentence.* We dispense with oral argument
*We recognize the transcript may contain a typographical error. In this
case, the district court may re-enter a written judgment ordering $6100
in restitution.

UNITED STATES v. WILLIAMS

because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
VACATED AND REMANDED